RICHARD B. MELBYE, AKA Brent Melbye v. ACCELERATED PAYMENT TECHNOLOGIES, INC., a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD B. MELBYE, AKA Brent
Melbye,
Plaintiff - Appellee,
v.
ACCELERATED PAYMENT
TECHNOLOGIES, INC., a Delaware
corporation,
Defendant - Appellant.
No. 12-57220
D.C. No. 3:10-cv-02040-IEG-JMA
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Senior District Judge, Presiding
Argued and Submitted February 5, 2015
Pasadena, California
Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
Accelerated Payment Technologies (“APT”) appeals the district court’s
denial of its renewed motion for judgment as a matter of law. Reviewing the
district court’s denial of APT’s motion de novo and the jury’s verdict for
FILED
MAR 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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substantial evidence, see EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961
(9th Cir. 2009), we affirm.
The jury’s finding that APT breached an oral or implied-in-fact contract
between Richard Melbye and Geoffrey Knapp for post-termination residual
commissions is supported by substantial evidence. APT argues that the employee
handbook was incorporated into the at-will employment agreement, and that the
handbook precludes post-termination commissions. We are unpersuaded. The
handbook was not incorporated into the employment agreement. But even if it
were, the handbook and the employment agreement did not constitute a fully
integrated contract because the handbook states that “[i]t does not contain the
complete terms or conditions of any of the company’s current benefit plans and
policies.” The jury could interpret the effect of the handbook and weigh extrinsic
evidence of the parties’ intent. See City of Hope Nat’l Med. Ctr. v. Genentech,
Inc., 43 Cal. 4th 375, 395 (2008) (“[W]hen, as here, ascertaining the intent of the
parties at the time the contract was executed depends on the credibility of extrinsic
evidence, that credibility determination and the interpretation of the contract are
questions of fact that may properly be resolved by the jury.”). And the record
contains ample evidence—including testimony of both Melbye and Knapp—that
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the handbook did not preclude the post-termination residual commissions to which
they had agreed.
Nor did the Change of Control Agreement supersede the post-termination
commissions contract. The Change of Control Agreement states that it does not
“prevent or limit” Melbye’s “continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Corporation.” And,
again, the record contains ample evidence that Melbye and Knapp did not intend
any conflict between the Change of Control Agreement and their post-termination
commissions contract.
AFFIRMED.
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